Realty Executives International Services LLC v. Devonshire Western Canada Limited et al

Filing 94

ORDER regarding discovery matrix. The Court will hold a telephone conference with the parties on December 5, 2019, at 10:00 a.m. (See attachment for rulings and further details). Signed by Senior Judge David G Campbell on 11/13/2019. (CLB)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Realty Executives International Services
LLC,

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Plaintiff,

No. CV-17-02671-PHX-DGC
ORDER

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v.
Devonshire Western Canada Limited, et al.,
Defendants.

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The Court held a conference call with the parties on October 22, 2019, heard

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argument, and directed the parties to file a discovery matrix. Doc. 88. The Court later

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requested a supplemental filing by Plaintiff (Doc. 90) and held a second telephone

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conference with the parties on November 12, 2019. The Court now rules.
Deposition of Plaintiff’s CEO, David Tedesco.

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1.

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After reviewing the relevant portion of the matrix (Doc. 89-2) and attachments, the

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Court concludes that Mr. Tedesco possesses information relevant to this case and is subject

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to deposition. The parties indicated during the initial conference call that this subject has

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been under discussion since June, indicating that Defendants did not delay unduly in

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seeking the deposition. The deposition shall be limited to three hours of questioning by

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Defendants and shall be completed within 30 days of this order.
Plaintiff’s Request for Further Time to Complete Canadian Discovery.

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2.

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The prior judge presiding over this case entered a case management order on

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August 27, 2018, and set a discovery deadline of July 1, 2019. Doc. 38. At the request of

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the parties (Doc. 54), the undersigned judge extended the fact discovery deadline to

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October 1, 2019. Because more than one year had been allowed for fact discovery in this

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case, the Court cautioned: “The parties are advised that the Court will not grant

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additional extensions absent truly extraordinary circumstances.” Doc. 58 (emphasis

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in original). To facilitate the October 22 conference call, the deadline was extended briefly

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to October 22, 2019. Doc. 85.

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The docket reflects that little discovery occurred during the 10-month discovery

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period between August 27, 2018, and July 1, 2019. The only entries on the dockets are

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notices of compliance with the Court’s mandatory initial discovery pilot project (“MIDP”).

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Indeed, on May 27, 2019, the parties filed a joint stipulation stating that they “served each

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other with written discovery in the form of Interrogatories, Requests for Admissions, and

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Requests for Production with responses due on or about June 17 – only two weeks before

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the scheduled discovery deadline.” Doc. 54 at 1-2. The parties thus waited until nearly

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the close of fact discovery before serving discovery requests. They also indicated that no

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depositions had occurred, and that they had “tentatively” scheduled depositions for

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June 10-14, 2019. Id. at 2. They further noted that Plaintiff intended to conduct discovery

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in Canada. Id.

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Although the Court extended the discovery period to October 1, 2019 with a

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warning, Plaintiff did not file a motion for letters rogatory to facilitate discovery in Canada

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until August 16, 2019, only six weeks before the close of discovery. Doc. 80. Not

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surprisingly, Plaintiff has now found that the issue is tied up in the Canadian courts.

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Although Plaintiff suggested in the initial conference call that matters would be resolved

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in Canada by January, papers submitted by the parties show that a hearing is set before a

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Canadian court on January 8, 2020, and that depositions and document production will be

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required in Canada thereafter if the request is granted. Doc. 89-3 at 18. There is no

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assurance that the issue will be resolved before months have passed in 2020. Plaintiff’s

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counsel acknowledged during the initial conference call that the letters rogatory process

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could have been initiated a year ago, and the relevancy of Canadian information has been

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clear from the start of this case.

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Rule 16 provides that deadlines established in a case management order may “be

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modified only for good cause[.]” Fed. R. Civ. P. 16(b)(4); see Johnson v. Mammoth

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Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992). “Good cause” exists when a deadline

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“cannot reasonably be met despite the diligence of the party seeking the extension.” Fed.

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R. Civ. P. 16 Advisory Comm. Notes (1983 Am.). Thus, “Rule 16(b)’s ‘good cause’

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standard primarily considers the diligence of the party seeking the amendment.” Johnson,

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975 F.2d at 609; see also Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir.

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2000). Where that party has not been diligent, the inquiry ends and the motion must be

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denied. Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002); Johnson, 975

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F.2d at 609. The Ninth Circuit continues to follow this standard. See Bailey v. Gatan, Inc.,

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No. 17-17530, 2019 WL 3782061, at *2 (9th Cir. Aug. 12, 2019).

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Plaintiff could have met both the July 1 and October 1 discovery deadlines through

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reasonable diligence, even with respect to the Canadian discovery. Plaintiff therefore has

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not shown good cause as required by Rule 16(b)(4) – much less the extraordinary

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circumstances the Court said would be required for further extensions – and the Court will

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not extend the discovery period to complete the Canadian discovery. With the exception

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of the Tedesco deposition and the document production addressed below, fact discovery is

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closed.
Plaintiff’s expert disclosure deadline.

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3.

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Plaintiff’s expert disclosure deadline was October 15, 2019. See Doc. 58. Plaintiff

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did not meet this deadline. As the Court stated during the initial conference call, however,

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it appears Plaintiff missed the deadline because it was waiting for the discovery conference

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call scheduled for October 22, 2019. The expert disclosure schedule will be reset after the

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conference call scheduled for December 5, 2019, as set forth below.

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Parties’ Disclosure Disputes.

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The Court has reviewed the parties’ matrix. Doc. 89-1. Many of Plaintiff’s

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document production requests seek documents that clearly are relevant to this litigation

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and should have been produced. Unfortunately, Defendants’ responses set forth a list of

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objections without stating whether any documents were produced in response to any

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request, without stating – as required by Rule 34(b)(2)(C) – whether any documents had

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been withheld on the basis of the objections, and without stating – as required by

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Rule 34(b)(2)(B) – when documents would be produced. Id.; Doc. 92. As a result, the

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Court cannot tell (and the matrix does not indicate) whether Defendants produced any of

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the requested documents.

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Plaintiff asserts that it has the same problem because Defendants produced a large

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number of documents with no indication of the requests to which they were responsive.

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Defendants respond that (a) Plaintiff failed to meet and confer before presenting the issue

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to the Court, (b) Plaintiff is not entitled to a log showing which documents are responsive

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to which requests, (c) Plaintiff is not entitled to information about the MaxWell entity, and

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(d) the time for discovery has passed. Doc. 89-4.

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The Court agrees that Plaintiff should have raised this issue earlier, but the plain

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insufficiency of Defendants’ Rule 34 responses leave the Court with no way of assessing

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whether Defendants even attempted to comply with their obligation to respond to each of

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Plaintiff’s Rule 34 requests. As a result, Defendants shall, by November 27, 2019, provide

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Plaintiffs with (a) a list, by Bates number, of documents it has produced in response to each

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document production request, and (b) a description of documents withheld on the basis of

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objections stated in Defendants’ Rule 34 response.1

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The Court will hold a telephone conference with the parties on December 5, 2019,

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at 10:00 a.m. Defendants shall arrange a call-in number and provide it to Court staff. The

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purpose of the conference call will be to determine whether additional production will be

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This need not be a document-by-document description, but should provide enough detail
about the withheld documents for Plaintiff and the Court to evaluate whether the
withholding is proper.
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required in response to Plaintiff’s original document production requests.2

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Dated November 13, 2019.

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Defendants suggest that if additional discovery is granted to Plaintiff, then Defendants
want to raise insufficiencies in Plaintiff’s discovery responses. The time for doing so has
passed. See Doc. 58, ¶ 6(c).
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